Home NIEN-HSI HSU, Plaintiff v. JONG-PING HSU, Defendant

MISC 03-289919

SEPTEMBER 17, 2020




The defendant, Jong-Ping Hsu, has filed a "Motion for Reconsidering & Altering 12/24, 2019 Decision, and Allowing a Counterclaim Against Plaintiff Pursuant to Rules 52(a), 60(b)(2, 2, (sic) 3, 6), MRCP 59(a), €, Or Alternatively, For Granting a New Trial." For the reasons stated below, treated as a motion for relief from judgment, the motion is DENIED.


Years after the entry in this court of a 2006 default judgment against the defendant, defendant J.P. Hsu moved for relief from judgment on the grounds that he had not been adequately served or had notice of the original action. On May 23, 2017, this court allowed his motion and ordered the case reopened. Defendant filed an answer and counterclaim, the parties conducted discovery, and there was considerable motion practice, including a motion for preliminary injunction filed by the defendant, which was allowed, and a motion for summary judgment by the defendant, which was denied. Defendant J. P. Hsu, self-represented at first, came to be represented by competent counsel. Following a two-day trial on January 29 and 30, 2019, the filing of post-trial briefs by both parties in April, 2019, and further motion practice by the parties concerning disputes over trial exhibits in May and June, 2019, the court issued a Decision and Judgment on December 24, 2019. In the Decision and Judgment, the court found in favor of the plaintiff on his resulting trust theory, and ruled that the defendant held his interest in the disputed property in a resulting trust for the benefit of the plaintiff.

The defendant did not file a notice of appeal. Instead, eight months after the entry of the Judgment, he filed the present motion, which is properly treated as a motion for relief from judgment pursuant to Rule 60, Mass. R. Civ. P.


Rule 60(b), Mass. R. Civ. P., provides as follows:

(b) Mistake; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of review, of error, of audita querela, and petitions to vacate judgment are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

Pursuant to Rule 60(b), a defendant seeking relief from a final judgment for reasons specified in Rule 60(b)(1), (2) or (3) must file a motion for such relief within one year after the entry of the judgment. A defendant seeking relief from a judgment for any other reason must do so "within a reasonable time." Defendant filed his motion for relief from judgment within one year from the entry of judgment, and so the motion is timely.

Defendant bases his motion in large part on his assertion of newly discovered evidence that he could not have discovered with due diligence in time to seek a new trial pursuant to Rule 59(b), Mass. R. Civ. P. He offers several photographs of automobiles owned respectively by him and the plaintiff at the time they co-signed the application for a mortgage for the subject property in 1979. His purpose is to show that he owned one of the cars and his brother owned the other. The court does not find the photographs probative of ownership, but more importantly, the court does not find that the respective ownership of the two automobiles by the two brothers would in any way change the court's findings or rulings with respect to the brothers' intentions at the time they entered into the transaction to purchase the subject property.

The defendant also seeks relief from judgment to seek to enter into evidence a newly discovered document, entitled, "Statistical Abstract of National Annual Average Income in Taiwan Area," including statistics for the years 1951 to 1979. Defendant seeks to introduce this document for the purpose of demonstrating that the plaintiff, who was born in Taiwan in 1951, could not possibly have earned enough to save the $16,000.00 he claimed at the trial to have saved for the down payment for the subject property. The court finds (1) there is no good reason that, with due diligence, this document could not have been found in time to offer it at trial, and the defendant has offered no such reason, (2) the document is not probative with respect to the plaintiff's income during the relevant time period, especially as the plaintiff claimed to have saved at least part of the down payment from his earnings in the United States; and (3) the document is not admissible, and would not have been admitted at trial, had it been offered, because defendant has offered no evidence to support its authenticity, and as noted, the court finds the document not to be probative of the facts for which it is offered.

Finally, defendant argues that the court should grant relief from judgment and grant him a new trial because his brother, the plaintiff, committed a fraud on the court by lying in his testimony. The court has already made its determinations of the credibility of the witnesses at the trial, and is not required to reopen the trial because the defendant disagrees with the court's findings of fact, or with its assessment of the credibility of the witnesses testifying at the trial. To the extent the defendant contends that there were no facts in evidence to support the court's findings, which the court does not believe to be the case, the defendant was free to appeal the judgment.

Therefore, it is

ORDERED that the defendant's "Motion for Reconsidering & Altering 12/24, 2019 Decision, and Allowing a Counterclaim Against Plaintiff Pursuant to Rules 52(a), 60(b)(2, 2, (sic) 3, 6), MRCP 59(a), €, Or Alternatively, For Granting a New Trial," treated as a motion for relief from judgment pursuant to Rule 60(b), Mass. R. Civ. P., is DENIED.

So Ordered.